The Rule of Law: Practice discretion when posting on social media

Friday

Mar 2, 2018 at 1:05 PMMar 2, 2018 at 1:05 PM

By Terence Robinson

Social media platforms like Facebook, Instagram, and Twitter allow us to communicate instantaneously with people around the world. With a few taps of a finger or thumb, we can share status updates, pictures, and political commentary with friends any time of day, wherever they may be.

A 2017 report estimates that more than 5 billion people use a smartphone and more than 3 billion people use social media. By comparison, another report estimates that there are still 2.3 billion people without access to a toilet. Perhaps it says something about our collective priorities that there are more people with smartphones than toilets.

The prolific spread of social media has created some interesting challenges for our legal system. With so many people posting so much information, is any of it truly “private?” Even setting aside the threat posed by hackers, is a private post subject to discovery in litigation? This issue was recently addressed by the New York State Court of Appeals, the state’s highest court, in the case of Forman v. Henkin. A full copy of the court’s Feb. 13 decision can be found at www.nycourts.gov/ctapps/Decisions/2018/Feb18/1opn18-Decision.pdf.

In Forman, the plaintiff, Kelly Forman, sued the owner of a horse after she fell from the horse and suffered traumatic spinal and brain injuries. She alleged that she was left with cognitive deficits, memory loss, social isolation, and difficulties with written and oral communication. During her deposition she said that before the accident she used to post a lot of pictures of her active lifestyle on her Facebook account, but that she had deactivated the account about six months later because her injuries made it difficult for her to use a computer and compose coherent messages.

Some of those posts were made to a “private” group of friends.

The defendant’s lawyers requested that the plaintiff disclose all of her private Facebook posts, arguing that the posts would shed light on her activities both before and after the accident. When the plaintiff refused to disclose her private posts, the defendant filed a motion with the trial court to compel disclosure.

The trial court was faced with a somewhat novel issue.

Does the general rule that all “material and necessary” information is subject to disclosure in litigation apply to private Facebook posts? The plaintiff argued that it does not apply. The defendant argued that it does. The trial court ruled in favor of the defendant, but imposed some modest restrictions on the disclosure. While the plaintiff was not required to produce the text of her private posts, she was required to produce all pictures that did not depict nudity or romantic encounters.

On appeal, the Appellate Division reversed the decision of the trial court and held that private posts were afforded protection and that the defendant could only see pictures from the plaintiff’s private posts if the plaintiff elected to introduce them at trial.

When the issue finally reached the Court of Appeals, the court sided with the initial decision of the trial court and held that there is no special protection for “private” posts. The Court of Appeals held that courts should apply established discovery rules and that “there is no need for a specialized or heightened factual predicate” when seeking the disclosure of private Facebook posts. When information in a Facebook post is “material and necessary” to the prosecution or defense of an action, it is subject to disclosure regardless of whether it is a public or private post.

Social media may be a relatively new medium, but courts will not afford social media platforms any special protection. As noted by the Court of Appeals in Forman, “[w]hile Facebook – and sites like it – offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”

The decision in Forman is an important reminder that there really is no such thing as a “private” post on social media once a court is involved. As social media use continues to grow and expand, the pull to post ever more about ourselves will grow as well. That impulse to share must be measured and balanced against the potential risk. While it may be cathartic to post a rant on social media about an employer, colleague, friend, or spouse who has wronged you, those rants will be discoverable if the dispute ever goes in front of a court.

The common proverb “discretion is the better part of valor,” which has Shakespearian and biblical roots, has served many well. In today’s modern age of social media, perhaps it should be modified to “discretion is the better part of posting.”

Terence Robinson is a partner at Boylan Code LLP, a full-service law firm with more than 50 legal professionals. Offices are located in Canandaigua, Newark, and Rochester. This article is not legal advice. Email: trobinson@boylancode.com

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